VS, 2013 PTD-CUSTOMS-APPELLATE-TRIBUNAL-KARACHI 1253 (2012)

Customs Act (IV of 1969)---

----Ss. 25, 79, 80, 81, 179 & 193---Determination of customs value of goods---Appeal to Collector (Appeals)---Maintainability---Importer/ respondent filed goods declaration---Assessing Authority observed that declared value was on lower side, and assessed the goods declaration provisionally under S.81 of Customs Act, 1969---Importer being aggrieved by said assessment filed appeal before Collector (Appeals), who accepted the same---Maintainability of appeal was challenged by the department, contending that final determination order passed under S.81 of Customs Act, 1969 was not appealable under S.193 of Customs Act, 1969 before Collector (Appeals)---Validity---Under provisions of S.193 of Customs Act, 1969, remedy of appeal before Collector (Appeals), was available to any person, other than an officer of customs, aggrieved by any decision or order passed under Ss.79, 80, 81 and 179 of the Customs Act, 1969---Contention that said appeal was not maintainable, was misconceived---Appeal filed by the department, was dismissed, in circumstances.

Liaq Shah, A.O. for Appellant.

Zafar Iqbal, A.R. for Respondent.

Date of hearing: 14th April, 2012.

JUDGMENT

CH. IMRAN MASOOD (MEMBER JUDICIAL).---This judgment will dispose of Appeal No.458 of 2011 filed by the appellant against Order-in-Appeal No.5084 of 20-11 dated 3-3-2011 passed by the Collector (Appeals) Karachi.

2.Brief facts of the case are that the respondent imported a consignment of Mineral Fibre Ceiling from China @ US$ 0.16/kg. At the time of the assessing of the GD bearing No. KAPR-HC-96048 dated 10-6-2010 it was observed that the declared value was on lower side therefore, the GD was assessed provisionally on 30-6-2010 @ US$ 0.27/kg under section 81 of the Customs Act, 1969 after securing the differential amount of duty and taxes between US$ 0.16/kg and US$ 027 1kg in the shape of post dated cheques and the matter was referred to the Directorate of Customs Valuation, Customs House, Karachi, for final determination of fair customs value. The Directorate of Customs Valuation, Karachi determined the final customs value @ US$ 0.41/kg vide valuation advice No.1/18/2010-V/3945 dated 18-10-2010. Accordingly the goods were finally determined and the respondent was directed to pay Rs.230749 as short levied amount. The respondent being aggrieved by the said final determination order passed under section 81 preferred the appeal before the learned Collector Appeals, Karachi, who was pleased to accept the same vide order dated 17-2-2011, which is re-produced as under:--

"I have thoroughly examined the entire case record and have given very careful consideration to the arguments advanced before me. Admittedly the assessment was finalized @ US$ 0.41/kg in pursuance of the advice rendered by the Deputy Director of Customs Valuation vide his letter No.1/18/2010-V/3945 dated 18-10-2010 herein it had been stated that since identical/similar goods had been imported, during the relevant period, between US and 0.16/Kg and US$ 0.4/kg, the goods imported in this case be assessed @ US$ 0.41/kg. However, I observe that the above-stated advice issued by the by the Deputy Director of Customs Valuation is in direct conflict with the provisions of law contained in clause (d) of subsection (5) of section 25 of the Customs Act, 1969 wherein it has been ordained that the lowest of the values on which identical goods are imported during the relevant 90 days period should be taken for assessment of goods under subsection (5) of section 25 of the Customs Act, 1969. I, therefore, order that the impugned goods be assessed @ US$ 0.16/kg. The impugned order is modified to the aforesaid extent only and the appeal is disposed of accordingly".

The appellant being aggrieved from the said order filed the instant appeal.

3.It is contended by the learned DR for the appellant that the impugned order is against the law and facts therefore, the same is liable to be set aside. It is further contended that the final determination order passed under section 81 of the Customs Act, 1969 was not appealable under section 193 of the Customs Act, 1969 before the learned Collector Appeals, as the orders passed by the Customs officer under sections 79, 80 and 179 are appealable under section 193 before the learned Collector Appeals. Therefore, The learned Collector Appeals has no jurisdiction to entertain an appeal filed against the order passed under section 81 ibid.

4.On the other side Mr. Zafar Iqbal, learned A.R. for respondent rebutted the plea taken by the learned D.R. for the appellant and requested to maintain the order in question. It was also submitted that the learned Collector Appeals had the jurisdiction to hear the appeal and pass the legal order.

5.Arguments have been heard. Record has been perused. The final assessment order shows that the respondent imported a consignment of Mineral Fibre Ceiling from China @ US$ 0.16/kg vide/IGM No.750/2010 dated 28-5-2010 and filed GD Machine No. 96048 dated 10-6-2010 through his clearing agent for clearance thereof. The Custom officer during checking of the goods declaration was unable to satisfy himself of the correctness of the assessment of the goods made under section 79 of the Customs Act, 1969 as he considered that the declared value of the goods in question is on lower side. Therefore, the officer of Customs for making further inquiry determined the duty and taxes payable on such goods provisionally. The differential between the final determination of duty over the amount determined provisionally was also secured by a cheque furnished by the importer as security. Thereafter the amount of duty and taxes correctly payable on these goods were determined finally keeping in view the valuation advice No.1/18/2010-V/ 3945 dated 18-10-2010 as required under section 81 of the Customs Act, 1969. Remedy of appeal before the learned Collector Appeals is provided under section 193 of the Customs Act, 1969, which reads as under:

193.Appeals to Collector (Appeals).---(1) Any person (other than) an officer of customs aggrieved by any decision or order passed under (sections 79, 80 and 179 of this Act by an officer of Customs not below the rank of an Assistant Collector) may prefer appeal to the Collector (Appeals) within thirty days of the date of communication to him of such decision or order:

Provided that an appeal preferred after the expiry of thirty days may be admitted by the Collector (Appeals) if he is satisfied that the appellant had sufficient cause for not preferring the appeal within that period.

(2)An appeal under this section shall be in such form and shall be verified in such manner as may be prescribed by rules made in this behalf.

(3)An appeal made under this Act shall be accompanied by a fee of one thousand rupees to be paid in the manner that may be prescribed by the Board".

The perusal of the above provisions of law reveals that the remedy of appeal before the learned Collector Appeals is available to any person other than an officer of Customs aggrieved by any decision or order passed under sections 79, 80 and 179 of the Customs Act, 1969. The remedy of appeal has been provided against any decision and order passed under sections 79, 80 and 179 of the Act. The argument of the appellant that the appeal against decision/order passed under sections 79, 80 and 179 of the Act is mis-conceived. Placement of word "or" between "any decision" and 'order passed under sections 79, 80 and 179 of the Act' makes the provisions of law disjunctive. Physiology used in this provision of law is clear. The remedy of appeal is available to an aggrieved person against 'any decision as well as against an order passed under sections 79, 80 and 179 of the Act'. The intention of the legislature is clear and by using the word "or" in between the above two phrases is meant to make any decision appealable besides an order passed under sections 79, 80 and 179 of the Act. If the intention was to use any decision and an order passed under sections 79, 80 and 179 of the Act conjunctive the word "and" would have been used. Therefore, the contention of the appellant that decision made under section 81 of the Act is not appealable before the learned Collector Appeals being without any force and as such is rejected and the appeal is dismissed. No order to costs Parties be informed by post or through UMS.

HBT/70/Tax(Trib.)Appeal dismissed.